Filing # 110155215 E-Filed 07/13/2020 03:29:16 PM
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Filing # 110155215 E-Filed 07/13/2020 03:29:16 PM IN THE SUPREME COURT OF FLORIDA HONORABLE GERALDINE F. THOMPSON, CASE NO. in her Official Capacity as a Representative for District 44 in the Florida House of Representatives, and as an Individual, Petitioner, vs. HONORABLE RON DESANTIS, in his Official Capacity of Governor of Florida, and DANIEL E. NORDBY, in his Official Capacity as Chair of the Florida Supreme Court Nominating Commission, Respondents. ______________________________/ EMERGENCY PETITION FOR WRIT OF QUO WARRANTO AND WRIT OF MANDAMUS WILLIAM R. PONALL PONALL LAW SunTrust Building 253 North Orlando Ave., Suite 201 Maitland, Florida 32751 Telephone: (407) 622-1144 [email protected] Florida Bar No. 421634 RECEIVED, 07/13/202003:30:30 PM,Clerk,Supreme Court LISABETH J. FRYER LISABETH J. FRYER, P.A. 247 San Marcos Avenue Sanford, Florida 32771 Telephone (407) 960-2671 [email protected] Florida Bar No. 89035 Attorneys for Petitioner TABLE OF CONTENTS PAGE TABLE OF CITATIONS . iii NATURE OF RELIEF SOUGHT . 1 PRELIMINARY STATEMENT . 3 STATEMENT OF CASE AND FACTS . 4 JURISDICTION. 12 STANDING. 13 ARGUMENT. 14 THE SUPREME COURT JUDICIAL NOMINATING COMMISSION EXCEEDED ITS AUTHORITY BY CERTIFYING JUDGE RENATHA FRANCIS AS A NOMINEE FOR THE VACANCIES ON THE FLORIDA SUPREME COURT. 14 GOVERNOR DESANTIS EXCEEDED HIS AUTHORITY BY APPOINTING JUDGE RENATHA FRANCIS TO THE FLORIDA SUPREME COURT . .19 CONCLUSION . 27 CERTIFICATE OF SERVICE . 28 DESIGNATION OF EMAIL ADDRESSES . 29 CERTIFICATE OF COMPLIANCE. 29 ii TABLE OF CITATIONS CASES PAGE(S) Advisory Opinion to Governor re Implementation of Amendment 4, The Voting Restoration Amendment, 288 So.3d 1070 (Fla. 2020). 14,21 Chiles v. Phelps, 714 So.2d 453 (Fla. 1998) . 13 Department of Environmental Protection v. Millender, 666 So.2d 882 (Fla. 1996) . 27 Fla. House of Reps v. Crist, 999 So.2d 601 (Fla. 2008) . 13 In re Advisory Opinion to Governor, 276 So.2d 25 (Fla. 1973). 12 In re Advisory Opinion to the Governor (Judicial Vacancies), 600 So.2d 460, 462 (Fla. 1992) . 13 In re Advisory Opinion to the Governor, 192 So.2d 757 (Fla. 1966). 24 Lawson v. Page, 250 So.2d 257 (Fla. 1971). 23-24 League of Women Voters v. Scott, 257 So.3d 900 (Fla. 2018) 12 League of Women Voters v. Scott, 232 So.3d 264 (Fla. 2017) 12 Plante v. Smathers, 372 So.2d 933 (Fla. 1979). 27 Pleus v. Crist, 14 So.3d 941 (Fla. 2009) . 3,12,13,19,21,26 State v. Poole, 45 Fla. L. Weekly S41 (Fla. Jan. 23, 2020) 25 Whiley v. Scott, 79 So.3d 702 (Fla. 2011) . 13 CONSTITUTIONAL PROVISIONS Article V, Section 3, FLORIDA CONSTITUTION. 12,20 Article V, Section 8, FLORIDA CONSTITUTION. 16 iii Article V, Section 11, FLORIDA CONSTITUTION . 5,12,15,19,20,21 RULES Rule 9.030(a)(3), Florida Rules of Appellate Procedure . 12 Section II, Initial Screening, Supreme Court Nominating Commission Rules . 15-16 Section V, Standards and Qualifications; Criteria, Supreme Court Nominating Commission Rules . 16 Section VI, Final Selection of Nominees, Supreme Court Nominating Commission Rules . 16 Section VII, Procedure for Final Voting, Supreme Court Nominating Commission Rules . 5 STATUTES Section § 43.291, Florida Statutes . 3-4,15 OTHER AUTHORITIES Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012) . 14 APPOINT, Black's Law Dictionary, Bryan A. Garner (11th ed. 2019). 21 iv NATURE OF RELIEF SOUGHT The Florida Supreme Court Judicial Nominating Commission (“the JNC”) exceeded the limits of its authority by certifying a list of nominees to Governor DeSantis that included a nominee who does not meet the constitutional requirements to hold the office of Supreme Court Justice. On the date the JNC certified Circuit Judge Renatha Francis1 as a nominee, she had not been a member of The Florida Bar for the preceding ten years. Based on that fact, the plain and unambiguous language of the Florida Constitution and the Supreme Court Judicial Nominating Commission Rules explicitly precluded the JNC from certifying Judge Francis as a nominee. This Court should issue a writ of quo warranto reaching that conclusion and a writ of mandamus compelling the JNC to immediately provide Governor DeSantis with a new list of nominees that are constitutionally eligible to hold the office. The Petitioner also seeks a writ of quo warranto establishing that Governor DeSantis exceeded the limits of his authority by 1 The Petitioner’s challenge to the nomination and appointment of Judge Francis is based solely on the requirements of the Florida Constitution. The Petitioner’s challenge in no way questions whether Judge Francis has the abilities or qualifications to be considered for appointment as a justice on the Florida Supreme Court when she meets all the requirements of the Florida Constitution for that position. 1 appointing Circuit Judge Renatha Francis to the Florida Supreme Court. On the date of the appointment, Judge Francis had not been a member of The Florida Bar for the preceding ten years. The plain and unambiguous language of the Florida Constitution requires that an individual satisfy that requirement prior to being eligible for appointment. If the Court concludes that Governor DeSantis has not yet formally “appointed” Judge Francis to the Florida Supreme Court, it should issue a writ of mandamus requiring the Governor to immediately appoint another individual who meets all the qualifications of the Florida Constitution from a new list of qualified candidates. Pursuant to the Florida Constitution, Governor DeSantis had a clear duty to appoint a fully qualified nominee no later than March 23, 2020. If Governor DeSantis has not yet made the required “appointment,” he is in express violation of the Florida Constitution. Governor DeSantis should be required to immediately remedy that violation. 2 PRELIMINARY STATEMENT Diversity on the Florida Supreme Court is an Important Goal Fully Supported by the Petitioner in this Case. The Petitioner fully supports racial and gender diversity on the Florida Supreme Court. (Appendix A).2 It is deeply disturbing that there are currently no African-American, Caribbean-American, or female members on the Supreme Court. The Petitioner believes that diversity is vital to the fair administration of justice, promotes a broader understanding of legal issues, and instills public confidence in the legal system. The Petitioner notes that this Court has previously recognized that a Governor’s interest in achieving diversity in the judiciary is a well-intentioned goal. See Pleus v. Crist, 14 So.3d 941, 946 (Fla. 2009). The Legislature has also made diversity a priority with regards to membership of the JNC. In making appointments to the JNC, the Legislature has stated the following: the Governor shall seek to ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity, as well as the geographic 2 Rep. Thompson: Nominee was the wrong choice for state Supreme Court, Orlando Sentinel, The Honorable Geraldine F. Thompson, February 14, 2020 https://www.orlandosentinel.com/opinion/guest-commentary/os-op-g eraldine-thompson-minority-judges-20200214-g3mustz5dncnjjfcprx2j flwmu-story.html 3 distribution, of the population within the territorial jurisdiction of the court for which nominations will be considered. The Governor shall also consider the adequacy of representation of each county within the judicial circuit. Fla. Stat. § 43.291. Despite the widely-recognized interest in diversity on the judiciary, and the fact that there were six fully-qualified African American applicants for the vacancies, the JNC failed to certify a single qualified African-American or Caribbean-American to Governor DeSantis. The failure of the JNC to include a single constitutionally-qualified candidate is puzzling, given the wealth of experience and pure merit of many of the diverse and constitutionally-qualified candidates that applied, but who were somehow overlooked by the JNC. As noted below, the JNC exceeded the scope of its legal authority by sending Governor DeSantis a list of nominees which included an individual who is not constitutionally qualified to hold the office of Supreme Court Justice. STATEMENT OF CASE AND FACTS On November 18, 2019, Robert Luck advised Governor Ron DeSantis that he was resigning from his position as a Justice on the Florida Supreme Court. (Appendix B). On November 22, 2019, Barbara Lagoa advised Governor Ron DeSantis that she was resigning 4 from her position as a Justice on the Florida Supreme Court. (Appendix C). On November 25, 2019, Governor DeSantis requested that Daniel Norby, the Chair of the JNC, convene the commission for the purpose of selecting and submitting nominees to the Governor for appointment to the Florida Supreme Court to fill the vacancies caused by the resignations of Justice Luck and Justice Lagoa. Governor DeSantis requested that the JNC provide him with 12 nominees, the maximum permitted by law for two vacancies (Appendix D).3 On the same day, November 25, 2019, the JNC issued a press release indicating that the commission was accepting applications to fill the vacancies caused by the resignations of Justice Luck and Justice Lagoa. (Appendix E). On December 24, 2019, the JNC issued a press release indicating that it had received 32 applications for the vacancies on the Florida Supreme Court. (Appendix F).4 Judge Francis was the only applicant who had not been a member of The Florida Bar for the preceding ten years. (Appendix G). Seven of the 32 applicants, 3 Article V, Section 11 of the Florida Constitution; Section VII, Procedure for Final Voting, Supreme Court Nominating Commission Rules. 4 Circuit Court Judge Kimberly Bonner’s name was inadvertently left off the list of applicants included in the press release. 5 including Judge Francis, were African-American or Caribbean- American. The experience and qualification of the African-American and Caribbean-American individuals who applied for the vacancies included the following:5 Ms.